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When assisting in
personal injury cases, medical information is the most important
verification of your clientís injuries. Obtaining that information is
not always as simple as just requesting it. Your request must be
specific and supported by a medical authorization form. Furthermore, it
must be directed to the medical facility or doctor with a clear promise
that the information will be paid for promptly.

One of the biggest
decisions is how much information you need. In small cases, the
emergency report from the hospital, X-ray reports, doctorís office
notes, physical therapy notes and copies of all medical bills might be
all you need. In cases where the client has spent considerable time in
the hospital, I recommend obtaining the entire hospital record. Some
attorneys always request the physicianís entire medical file. However,
in small cases itís important to limit the amount of information
requested because it can be expensive and will clutter a file with
unnecessary information.

In more significant
cases, the attorney must at least review the entire file before suit, as
that file will be reviewable by the defense attorney. In these cases,
many attorneys make the mistake of requesting only the hospital
emergency report without making the request clear that the entire
record, including nursesí notes, should be sent. Nursesí notes often
contain important evidence with respect to pain, suffering, complaints,
medication effects and objective symptoms, such as swelling and vital
signs.

In many jurisdictions,
the hospital record is admissible in and of itself under the business
records exception to the hearsay rule. In such jurisdictions, the
statute or rule of evidence might require that the hospital record be
certified. Make sure you request this when you order the record so that
it can be admitted into evidence without having to call a witness to
testify as to the accuracy and content of the medical record.

The following letters
will help you efficiently obtain and track complete medical
documentation:

Personal injury legal
professionals throughout the country often complain about doctors,
chiropractors and medical facilities that charge exorbitant fees for
medical reports, medical records, depositions and in-court testimony. If
you are involved in a situation where a medical provider has charged or
insists upon receiving an excessive fee for medical information, your
first step is to ascertain whether standards or fee schedules for
medical information exist in your state.

Some medical associations
and even medical or legal symposiums have adopted uniform schedules for
medical information, depositions and court testimony. Contact your local
bar association, state bar association, state trial lawyers association
or state medical association to see if a fee schedule has been adopted.
Another source is your state workersí compensation system, which might
have adopted fee schedules for depositions, hearing testimony and
medical records. If you find a fee schedule, obtain a copy and check the
charges in your particular case to determine whether the doctor or
medical institution has charged an excessive fee. If the fee appears to
be excessive, send a copy of the fee schedule to the doctorís office and
request that the doctor reconsider the amount charged and accept a fee
consistent with the schedule.

If there are no standards
or fee schedules in your state, you can either look to your own
experience in receiving bills for medical information or you can contact
other attorneys in your area, including defense attorneys who process
medical information, to determine a consensus of opinion on the fee. Do
not contact the doctor until you have become sure in your own mind that
the fee charged is blatantly excessive. Once you have determined that
the fee is excessive, consider the following alternatives:

1. Contact the doctorís office requesting
reconsideration.
Before you actually request the reconsideration, call the office manager
of the doctorís office or medical facility and find out if the bill is
correct. If the manager or staff member replies affirmatively, politely
suggest that the fee is higher than the usual and customary charges for
information of this nature. Inquire as to whether there is something
different about the information provided that requires a more expensive
fee. Then, respectfully request that the staff member reconsider the
amount. If the bill is reduced, promise to send a check by return mail
and thank them for their courtesy.

Often, a polite letter is
more effective than a phone call. A letter allows the doctor or his or
her staff to consi≠der the tone of your request and take time to
respond. I recommend sending a letter if you donít know the doctor or
have never dealt with his or her office before. Use the
Request for Reconsideration Letter
(click to download).

Another option is to
instruct your client to contact the doctorís office or medical facility
to complain about the bill. If your client has a long-standing
relationship with the doctor or facility, or if the doctor has received
a substantial amount of money for medical treatment (for example, a
chiropractor who has received several thousand dollars for numerous
treatments), it might be appropriate for the client to contact the
doctor or facility and request a reduction of the bill.

2. Pay the bill in installments.
If the bill is substantial, that is, several hundred dollars or more,
itís appropriate to send payments on an installment basis. Send a letter
indicating that the bill is higher than customary and that your client
is unable to pay the cost all at once. Remind the doctor that your fee
agreement with the client makes the client responsible for the cost of
medical information. See
Installment Payment Letter
(click to download).

3. Send an amount that you deem fair and
indicate that the payment is to be considered in full satisfaction of
the charges.
If you believe there is a significant chance that your case will settle
and that you will not require the doctorís testimony at trial, and if
you donít expect to have future contact with this particular doctor or
facility, you can simply send a check in an amount you deem fair and
reasonable. Attach a letter stating that you consider the check to be in
full satisfaction of the doctorís charges. See
Partial Payment Letter(click to download).

4. Delay payment and inform the doctor
that the amount will be paid at the time of settlement or verdict.One
way to deal with an excessive bill is to put it on hold until you have
resolved the case. This advice goes against my strong recommendation
that medical information be paid for immediately. However, in cases
where the fee is absolutely excessive, you can let the doctor know that
itís your usual practice to pay for bills immediately, but in this
instance itís necessary to delay payment until the funds are available.
Remind the doctor that the fee is your clientís responsibility and that
itís necessary to wait until the client has received settlement proceeds
to pay for the bill.

5. If the doctor insists on an excessive
fee before sending the information, forward the payment under protest.
There are many circumstances in which doctors request an extremely
excessive fee before they will issue a report. In those cases, you
should send the amount requested and indicate that you are paying the
bill under protest. After you receive the report, if you still believe
the charge was absolutely outrageous, write to the doctor and request
reimbursement of a portion of the amount paid. If the doctor refuses,
you can threaten to report the incident to the state medical licensing
board or the state medical association.

Some doctors refuse to
come to court or attend a deposition unless they are paid an excessive
fee up front. In one case, a prominent surgeon in one of New Englandís
largest cities demanded a deposition fee of $3,000 before he would
testify. If you are faced with such a situation and you believe the
amount requested is extremely excessive, use the subpoena power under
your state statutes or rules of procedure to require attendance at trial
or deposition, especially in a small to medium case. Explain to the
doctor that his fee will be considered by the court after the verdict
and that the court will determine whether the amount requested is
reasonable. Further advise the doctor that if the verdict is sufficient,
your client will consider payment of the full amount requested.

6. Pay the bill.There are circumstances
in which you will just have to grit your teeth and pay the bill in full,
especially if the doctor is likely to be a witness at trial. I donít
recommend alienating your primary witness over $100 or $200. It has been
my experience that, despite excessive witness fees, the doctorís
testimony was so good that the case settled very reasonably or the
verdict was well in excess of the amount offered before trial.

Keeping Small Cases on Track

Most small personal
injury cases should follow a fairly expedient timetable. I have seen
many cases come to my office from clients who have left other lawyers
because their case had not yet settled. When I go through the files on
those cases, I often notice that the case is several years old, with a
minimal offer from the insurance company. Insurance carriers love these
stale files. They know that even if the case proceeds to trial, their
ultimate exposure will still be only a few thousand dollars.

Small cases get old,
forgotten and decrease in value as time goes on. Donít let this happen
to your files. Keep your cases on track and avoid having the files
become burdensome anchors.

The Key to Medical
Records Review

Paralegals play a
major role not only in obtaining medical records, but also in reviewing
the records when they are received. The key to understanding these
records lies in the abbreviations and code symbols frequently used in
medical reports, hospital records, nursesí notes and other medical
documents. Itís imperative that you understand the meaning of these
abbreviations and symbols because they refer to actual conditions of
your client.

For example, a
reference to ďETOHĒ might mean that the patient had consumed alcohol and
was under the influence of intoxicating beverages. Such a reference
could be extremely important in your case. Failure to recognize a
reference to alcohol consumption could make a difference in the value of
the settlement and also would be fatal to your case if you learned about
it for the first time at trial. See
Common Medical Abbreviations
(click to download) for more than 150 definitions on one
handy sheet.

Ellsworth T. Rundlett III is a personal injury trial lawyer with more
than 30 years of experience, and is a past president of the Maine Trial
Lawyers Association. He is the author of ďMaximizing Damages in Small
Personal Injury CasesĒ (www.jamespublishing.com
or 800-440-4780), from which this article is excerpted.